United States District Court, D. Maryland
L. Russell, III United States District Judge.
MATTER is before the Court on Defendants Baltimore County,
Maryland, Baltimore County Department of Planning
(“Department of Planning”), and Baltimore County
Board of Appeals's (the “Board of Appeals”)
(collectively, the “County”) Motion to Dismiss
(ECF No. 15) and Defendant Circuit Court for Baltimore
County's (the “Circuit Court”) Motion to
Dismiss (ECF No. 20). The Motions are ripe for disposition,
and no hearing is necessary. See Local Rule 105.6
(D.Md. 2018). For the following reasons, the Court will grant
Friends of Lubavitch, Inc. (“FoL”) is a religious
corporation that was formed to support the global Orthodox
Jewish Chabad-Lubavitch movement in Maryland and which has
helped establish Chabad centers, a rabbinical school, and a
primary school. (Compl. ¶¶ 3, 23, ECF No. 1).
Plaintiffs Rabbi Menachem Rivkin (“Rabbi Rivkin”)
and Sheina Rivkin (collectively, the “Rivkins”)
have administered one of those centers, the Towson Chabad
House (the “Chabad House”), which has served
Orthodox Jewish students or alumni of the nearby Towson
University and Goucher College in Baltimore County, Maryland,
including the eight other Individual
Plaintiffs. (Id. ¶¶ 4-13, 19).
There are more than fifty such Chabad Houses in the United
States, many of which serve as residences to their rabbis or
schluchim, and many are zoned as residences or the local
equivalent. (Id. ¶ 24).
September 2008, FoL purchased the property at 14 Aigburth
Road in Towson, Maryland (the “Property”), on
which sat a 2, 200-square-foot residence, intending to use it
as a Chabad House, which would “provide Jewish
religious hospitality and education” to local college
students and residents. (Id. ¶¶ 18, 21).
FoL picked the Property because it is approximately 1.7 miles
from Goucher College and 700 feet from Towson University;
Orthodox Jews cannot travel by automobile on the Sabbath, and
the nearest Orthodox Jewish synagogue is 7.1 miles from the
Property. (Id. ¶ 19). Beginning in 2008, the
Rivkins posted a sign identifying the Property as the Chabad
House and hosted students for kosher meals, prayer, and
Jewish holidays. (Id. ¶¶ 25, 27). Within a
few years, the popularity of the Chabad House increased such
that FoL and the Rivkins decided to expand the building on
the Property. (Id. ¶ 29).
December 2011, Rabbi Rivkin met with several Baltimore County
officials about the contemplated expansion (the
“Expansion”) of the Chabad House. (Id.
¶ 31). They told him to consult with his neighbors,
which he did. (Id.). In or about May 2014, FoL and
Rabbi Rivkin obtained financing for the Expansion.
(Id. ¶ 32). Thereafter, Rabbi Rivkin consulted
with Baltimore County's Director of Permits, Approvals,
and Inspections Arnold Jablon, who told Rabbi Rivkin that he
would grant a building permit for the Expansion if the Chabad
House qualified under local zoning laws as a synagogue.
(Id.). Even though FoL and the Rivkins did not
intend to build a synagogue, in anticipation of the issuance
of a building permit, FoL and the Rivkins held a public
ground-breaking in June 2014. (Id. ¶¶
point thereafter, neighbors and other Towson residents
opposed the Expansion, which would at least triple the
building square footage on the Property. (Id. ¶
36; Defs.' Mot. Dismiss Ex. C [“Court of Special
Appeals Opinion”] at 1, 8, ECF No. 15-5). When Rabbi
Rivkin sought to meet with Jablon in October 2014, Jablon
refused. (Id. ¶ 37). In an effort to address
neighbors' concerns, Rabbi Rivkin offered to reduce the
height of the proposed Expansion and to make the front of the
building appear more “residential.” (Id.
¶ 38). Rabbi Rivkin made no formal request that the
building on the Property qualify as a synagogue.
January 29, 2015, the County issued a “Code Enforcement
Correction Notice” (the “Notice”) against
the Chabad House, alleging that: (1) it was “an illegal
House of Worship/ Religious Institution” that did not
meet “the [residential transit area] requirements, the
parking requirements and the Non Residential Principle
Setback requirements” of the Baltimore County Zoning
Regulations (“BCZR”); and (2) it was “a
Community Building” that failed to have a
“Special Exception Hearing.” (Id. ¶
39). Under the BCZR, “buildings for religious worship
or other religious institutions” are permitted as a
matter of right, whereas “community buildings”
are only permitted by “special exception.” BCZR
§§ 1B01.1.A.3, C.4 (2019). The Notice was converted
into a citation (the “Citation”) on March 2,
2015. (Compl. ¶ 39). Jablon told Rabbi Rivkin and his
attorney that they should request a hearing under BCZR §
500.7, which they then did. (Id. ¶ 42).
Specifically, FoL petitioned for a special hearing “to
confirm continued use of the subject property as a
residential parsonage with an accessory use for religious
worship and religious education.” (Court of Special
Appeals Opinion at 6). Administrative Law Judge John Beverungen
(“ALJ Beverungen”) presided over the hearing on
June 19 and 25, 2015. (Compl. ¶ 42). At the hearing,
Department of Planning Director Andrea Van Arsdale
recommended the denial of FoL's petition because
“it was operating a ‘community building,'
which would require a special exception.” (Id.
¶ 43). On June 26, 2015, ALJ Beverungen ruled the Chabad
House was not “a residential parsonage” because
it was not attached to a house of worship and denied
FoL's Petition. (Id. ¶ 45). On August 10,
2015, ALJ Beverungen denied Rabbi Rivkin's motion for
reconsideration, noting that he had “no authority to
insist that the Code Enforcement Bureau rescind a citation or
correction notice issued by one of its inspectors.”
(Id.). FoL did not appeal. (Defs.' Reply Ex. H
(“Board of Appeals Decision”) at 2, ECF No.
August 20, 2015, Rabbi Rivkin, through a letter from his
attorney, asked the County “what specific objection(s)
the County has to Rabbi and Mrs. Rivkin's submitting
their building plans for review, comment and approval”
so they could proceed with the Expansion. (Compl. ¶ 46).
Jablon told Rabbi Rivkin that he would not permit the
Expansion unless Rabbi Rivkin submitted another petition for
a Section 500.7 hearing, which Rabbi Rivkin then did on
behalf of FoL. (Id. ¶ 47). “The
neighbors began filing complaints with County Code
Enforcement. Citations were issued but went nowhere.”
Board of Appeals Decision at 3. The neighbors then filed
their own petition, 16-308-SPH. Id. On March 31,
2016, ALJ Beverungen presided over a second hearing regarding
the petitions, where Jablon and Van Arsdale opposed FoL's
second petition because the Expansion would not “be
solely for ‘additional living space for the family
who resides therein'” because the Rivkins also
hosted meals for local Orthodox Jews at the Chabad House.
(Compl. ¶ 49). Nevertheless, on April 6, 2016, ALJ
Beverungen dismissed the neighbors' petition as premature
and approved Rabbi Rivkin's application for the
Expansion. (Id. ¶ 51; Court of Special Appeals
Opinion at 7-8; Board of Appeals Decision at
On April 19, 2016, Rabbi Rivkin received a building permit
for the Expansion, a 6, 600-square-foot structure, and
construction began on June 6, 2016. (Compl. ¶ 52; Court
of Special Appeals Opinion at 8, 10).
27, 2016, Rabbi Rivkin learned from a neighbor that a
covenant (the “Covenant”), created in 1950 by the
Property's deed, provided that its dwelling “shall
have a setback equal to one-half of the total setbacks of the
two houses erected on the lots adjoining to the East and West
thereof, measured to the centre of said houses, exclusive of
porches.” (Compl. ¶ 53). Because halting
construction and revising the plan for the Expansion would be
very expensive, “construction continued pursuant to the
building permit.” (Id. ¶ 54).
August 12, 2016, Robin Zoll, the Rivkins' next-door
neighbor who had informed them of the Covenant, and the
Aigburth Manor Association of Towson, Inc. (“the
Neighbor Plaintiffs”) sued FoL in the Circuit Court for
Baltimore County to enforce the Covenant with respect to the
Expansion. (Id. ¶ 56); see Zoll v. Friends
of Lubavitch, Inc., No. 03-C-16-008420 (Cir.Ct.Balt.Cty.
filed Aug. 12, 2016),
March 30 and 31, 2017, Circuit Court Judge Susan Souder
presided over a bench trial regarding the Zoll lawsuit.
(Compl. ¶ 57). Souder heard testimony regarding the
community objection to the Expansion beginning in 2012 when
it was first proposed, as well as about the Covenant.
(Id. ¶ 58). On April 7, 2017, Judge Souder
ruled that the Covenant applied and ordered the
“removal” of the Expansion insofar as it violated
the Covenant. (Id.). FoL appealed. (See Id.
on October 27, 2016, the Board of Appeals began a de novo
hearing on FoL's second petition (16-170-SPH) and the
neighbors' petition (16-308-SPH). (Board of Appeals
Decision at 4-5). The hearing was scheduled to continue on
January 12, 2017, and on January 11, 2017, FoL dismissed its
petition, and its counsel withdrew. (Id. at 5).
Rabbi Rivkin did not appear to testify again, instead
delivering a letter to the Board of Appeals in February 2017
that threatened a claim under the Religious Land and
Institutionalized Persons Act (“RLUIPA”).
(Id. at 6). On September 5, 2017, the Board of
Appeals ruled 2-1 in favor of the neighbors regarding their
petition. (Id. at 7). They credited the neighbors
testimony over Rabbi Rivkin's and noted that the building
on the Property was now close to 9, 000 square feet with a
dining room that could seat more than 120 people.
(Id. at 6-9). Noting it only had the power to make a
declaration, not issue an injunction, the Board of Appeals
declared that the Chabad House's use of the Property
“has exceeded the use compatible with that of a
residential property” and that it “has assumed
the dual status of a residence and a community center by
consistently hosting events advertised to hundreds of people
and attended by scores, and by acting as an outreach center
to college students.” (Compl. ¶ 59; Board of
Appeals Decision at 16-17). The dissenting opinion called the
zoning status of the Chabad House a “vexing
question” and would have denied the petition and let
the County Department of Permits, Approvals and Inspections
determine on a case-by-case basis whether the Property's
use violates the BCZR. (Board of Appeals Decision at 19-20).
October 23, 2017, the Court of Special Appeals of Maryland
affirmed the Circuit Court's order and, based in part on
the “Zoning Hearings, ” held that there was
“no abuse in discretion by the trial court fashioning
an injunction akin to specific performance.” (Compl.
¶ 61). Judge Souder had appointed a Receiver, Debra
Dopkin, to administer compliance with the Circuit Court's
ordered injunctive relief. (Id. ¶ 62). The
Receiver recommended removal of the Property's original
home and the relocation of the Expansion such that it would
satisfy the Covenant, a course of action that would cost
approximately $250, 000.00. (Id.). On October 31,
2018, Judge Kathleen Cox of the Circuit Court rejected the
Receiver's recommendation and ordered the Expansion
“razed.” (Id. ¶ 63). Judge Cox
concluded that, because “FOL has been using the
property without obtaining necessary approvals or complying
with regulations, ” Rabbi Rivkin had “unclean
hands, ” and that accepting the Receiver's
recommendation would “tacitly endorse that which has
been repeatedly found to be a violation of existing
restrictions in the residential community.”
(Id.). On December 12, 2018, FoL and the Rivkins
moved to stay Judge Cox's order. (Id. ¶
65). On January 10, 2019, the Circuit Court granted FoL and
the Rivkin's motion for stay, which the Neighbor
Plaintiffs appealed on February 11, 2019. (Def. Cir. Ct.
Balt. Cty.'s Mot. Dismiss [“Cty. Mot.”] Ex. 2
[“State Court Docket”] at 17-18, ECF No. 20-2).
December 20, 2018, Plaintiffs sued the County and the Circuit
Court. (ECF No. 1). In their nine-count Complaint, Plaintiffs
assert that: Defendants substantially burdened their
religious exercise in violation of RLUIPA, 42 U.S.C. §
2000cc(a)(1) (2018) (Count I); Defendants imposed standards
and conditions that treat religious institutions on less than
equal terms with nonreligious institutions in violation of
RLUIPA, § 2000cc(b)(1) (Count II); Defendants'
implementation of the County land use regulations
discriminates against Plaintiffs on the basis of their
religion in violation of RLUIPA, § 2000cc(b)(2) (Count
III); Defendants' implementation of the County land use
regulations will totally exclude the Plaintiffs'
religious activity from Baltimore County in violation of
RLUIPA, § 2000cc(b)(3)(A) (Count IV); Defendants'
implementation of the County land use regulations
unreasonably limits the Plaintiffs' religious activity in
violation of RLUIPA, § 2000cc(b)(3)(B) (Count V);
Defendants' implementation of the County land use
regulations violates the Free Exercise Clause of the First
Amendment to the U.S. Constitution (Count VI);
Defendants' implementation of the County land use
regulations violates the Equal Protection Clause of the
Fourteenth Amendment (Count VII); Defendants' arbitrary
implementation of the County land use regulations violates
the Due Process Clause of the Fourteenth Amendment (Count
VIII); and that the County, through its employees, defamed
FoL and Rabbi Rivkin (Count IX). (Compl. ¶¶ 18-90).
Plaintiffs bring their three constitutional claims (Counts
VI-VIII) under 42 U.S.C. § 1983 (2018). (Compl. at
18-19). Plaintiffs seek declaratory and injunctive relief, as
well as monetary damages and their attorney's fees and
costs. (Id. at 20-21).
February 28, 2019, the County filed its Motion to Dismiss,
(ECF No. 15), as did the Circuit Court, (ECF No. 20). On
April 15, 2019, Plaintiffs filed a combined Opposition to
both Motions. (ECF No. 24). On May 29, 2019, the County filed
a Reply. (ECF No. 30). On June 27, 2019, the Circuit Court
filed a Reply. (ECF No. 31).
Circuit Court Motion to Dismiss
Standard of Review
purpose of a motion under Federal Rule of Civil Procedure
12(b)(6) is to “test[ ] the sufficiency of a complaint,
” not to “resolve contests surrounding the facts,
the merits of a claim, or the applicability of
defenses.” King v. Rubenstein, 825 F.3d 206,
214 (4th Cir. 2016) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). A
complaint fails to state a claim if it does not contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief, ” Fed.R.Civ.P.
8(a)(2), or does not “state a claim to relief that is
plausible on its face, ” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555). Though the plaintiff is not required to
forecast evidence to prove the elements of the claim, the
complaint must allege sufficient facts to establish each
element. Goss v. Bank of America, N.A., 917
F.Supp.2d 445, 449 (D.Md. 2013) (quoting Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012)),
aff'd sub nom. Goss v. Bank of America, NA, 546
Fed.Appx. 165 (4th Cir. 2013).
considering a Rule 12(b)(6) motion, a court must examine the
complaint as a whole, consider the factual allegations in the
complaint as true, and construe the factual allegations in
the light most favorable to the plaintiff. Albright v.
Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of
Comm'rs, 407 F.3d 266, 268 (4th Cir. 2005) (citing
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). But,
the court need not accept unsupported or conclusory factual
allegations devoid of any reference to actual events,
United Black Firefighters v. Hirst, 604 F.2d 844,
847 (4th Cir. 1979), or legal conclusions couched as factual
allegations, Iqbal, 556 U.S. at 678.
Circuit Court argues that the Eleventh Amendment bars the
Plaintiffs' claims against it. Plaintiffs counter that
their claims for prospective injunctive relief may proceed
under the Supreme Court's holding in Ex parte
Young, 209 U.S. 123 (1908). The Court agrees with the
Eleventh Amendment to the United States Constitution provides
that “[t]he Judicial power of the United States shall
not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by
Citizens of another State.” U.S. Const. amend. XI.
Notwithstanding the Eleventh Amendment's explicit mention
of only “Citizens of another State, ” the U.S.
Supreme Court has construed the Eleventh Amendment as also
protecting states from federal court suits brought by the
state's own citizens. Id.; Lee-Thomas v.
Prince George's Cty. Pub. Sch., 666 F.3d 244, 248
(4th Cir. 2012) (quoting Port Auth. Trans-Hudson Corp. v.
Feeney, 495 U.S. 299, 304 (1990)). Thus, the Eleventh
Amendment bars actions by any private citizen against a
state. See Project Life, Inc. v. Glendening, 139
F.Supp.2d 703, 706-07 (D.Md. 2001) (quoting Bd. of
Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356,
363 (2001)). Additionally, “states' immunity
extends to ‘state agents and state
instrumentalities.'” Lee-Thomas, 666 F.3d
at 248 (quoting Regents of the Univ. of Cal. v. Doe,
519 U.S. 425, 429 (1997)). Maryland state courts, like the
Circuit Court, are arms of the State, therefore, are immune
from suit in federal court. See Coleman v. Court of
Appeals of Maryland, 566 U.S. 30, 35 (2012) (affirming
on the grounds the lower court, which ruled that Maryland
Court of Appeals is an entity or instrumentality of the State
for purposes of sovereign immunity); Alexander v. Dist.
Ct. of Md. for Charles Cty., 2008 WL 6124449, at *7
(D.Md. Mar. 20, 2008).
states retain immunity from suit, this constitutional bar is
not absolute and is subject to three exceptions, only one of
which is relevant here. Lee-Thomas, 666 F.3d at
248-49 (citing Feeney, 495 U.S. at 304). As
interpreted by the Supreme Court in Ex Parte Young,
the Eleventh Amendment “permits suits for prospective
injunctive relief against state officials acting in violation
of federal law.” Id. at 248 (quoting Frew
ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004)).
Plaintiffs seek prospective injunctive relief against the
Circuit Court. Under the Ex Parte Young exception,
private citizens can bring such suits against
“state officials acting in violation of
federal law.” Lee-Thomas, 666 F.3d at 248
(quoting Frew ex rel. Frew v. Hawkins, 540 U.S. 431,
437 (2004) (emphasis added). The Circuit Court is not a state
official; it is an institutional arm of the state.
Alexander, 2008 WL 6124449, at *7. As a result, the
Ex Parte Young exception does not apply to
Plaintiffs' suit against the Circuit Court, and it is,
therefore, barred by the Eleventh Amendment. Accordingly, the
Court will grant the Circuit Court's Motion and dismiss
the Complaint as to the Circuit Court.
County Motion to Dismiss
argue that the Court should dismiss Plaintiffs' claims
under the Rooker-Feldman doctrine, because
Plaintiffs lack standing, and because they fail to state a
claim. Plaintiffs counter that their claims do not fall
within the narrow confines of Rooker-Feldman, that they have
standing to sue the County, and that they have pleaded all of
their claims sufficiently. The Court will address these
arguments in turn, as they apply to Plaintiffs' claims.
Rule 12(b)(1) Standard of Review
bring their Motion under Rule 12(b)(6), but Rule 12(b)(1)
governs motions to dismiss for lack of subject matter
jurisdiction, the basis for Defendants' first two
arguments. See CGM, LLC v. BellSouth Telecomms.,
Inc., 664 F.3d 46, 52 (4th Cir. 2011); Akers v. Md.
State Educ. Ass'n, 376 F.Supp.3d 563, 569 (D.Md.
2019). A Rule 12(b)(1) motion to dismiss for lack of subject
matter jurisdiction “challenges a court's authority
to hear the matter brought by a complaint.”
Akers, 376 F.Supp.3d at 569. Under Rule 12(b)(1),
“the plaintiff bears the burden of proving, by a
preponderance of the evidence, the existence of subject
matter jurisdiction.” Id. (first citing
Demetres v. E. W. Const., Inc., 776 F.3d 271, 272
(4th Cir. 2015); then citing Lovern v. Edwards, 190
F.3d 648, 654 (4th Cir. 1999)).
challenging a complaint under Rule 12(b)(1) may advance a
“facial challenge, asserting that the allegations in
the complaint are insufficient to establish subject matter
jurisdiction, or a factual challenge, asserting ‘that
the jurisdictional allegations of the complaint [are] not
true.'” Hasley v. Ward Mfg., LLC, No.
RDB-13-1607, 2014 WL 3368050, at *1 (D.Md. July 8, 2014)
(alteration in original) (quoting Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009)); ...